Railway worker badly injured preventing a major accident has to fight for compensation

Railway worker badly injured preventing a major accident has to fight for compensation

20/09/2012

On a spring day in 2011, Pei Yonghong got a phone call from the Xiangtan Power Plant in the southern province of Hunan. They were short of staff and wanted him to come back to the job at the railway marshalling yard he had recently quit. The work was dangerous and the pay poor, but as a former soldier he felt honour-bound to answer the call for help. On 10 March, he turned up at the marshalling yard and began one more stint as a shunting-coupler.

Just as Pei was beginning to move an oil transport train, his walkie-talkie, not for the first time, failed to transmit. In order to stop the moving train from crashing into an oil depot where some 15 tank wagons were being unloaded, Pei had no choice but to jump off his tank wagon and run as fast as he could to the signal house to get the spare walkie-talkie. But in the rush, he lost his footing and fell under the wheels, severely injuring his right arm and back. Despite the shock and pain, he got up and frantically ran on more than 100 metres, reached the signal house, found a spare walkie-talkie and got the driver to stop the oil train in time.

For his quick thinking, courage and self-sacrifice, Pei was awarded the Hunan Youth Day prize, the title of Outstanding Young Migrant Worker, and a provincial government order of merit. He was feted by the media, and Pei Yonghong soon became nationally known, with even his own entry in China’s Wikipedia-style website 百度百科. The provincial Communist Youth League said they would earmark up to 250,000 yuan to get a prosthetic replacement for his arm, which had to be amputated at the shoulder.

Shabby treatment

Pei did eventually get most of the compensation he was promised as well as a prosthetic arm but it took a year-long struggle that left Pei disillusioned and angry. When he talked to CLB Director Han Dongfang in November 2011, Pei had still not got his prosthetic arm, and all he had in the way of compensation was a scant 850 yuan allowance that mysteriously appeared in his bank account every month.

“That 250,000 yuan never materialised,” he said. “They said they ‘would pay us’ 250,000 yuan. But the provincial government... when we went to get approval, they said it had been referred to higher levels and had not been approved yet.”

Pei’s problems largely stemmed from the fact that he had quit his job and had no formal employment relationship at the time of the accident. But even if he still had been officially employed, legal liability could have been hard to pin down. He’d worked for the Datang Power Company but the yard was operated by the company’s wholly owned rail-freight subsidiary Feihong, and the organisation with which Pei had signed the employment contract was an employment agency supplying labour to Datang Power.

After Pei’s accident, all three parties denied liability and sought to pass the burden of compensation on to the local government’s work-related injury insurance bureau. Even the donor of Pei’s 850 yuan allowance sought anonymity because disclosure would be tantamount to admission of liability, opening the door to a potentially much greater compensation bill:

I feel very angry about this, I saved people’s lives and I’m just told to go and get help from the state insurance fund, I think that is pretty dismal state for a society to be in.

Tough job

The marshalling yard work was very difficult and unpopular among workers. “We were pressured by the agency,” he said. “The wages were low and turnover high.” He only stuck at it originally because another part of the job was much more lucrative. “It was piece rates – same division, different job,” bringing his monthly wage up to nearly 4,000 yuan. But the shunting work netted him only 850 yuan a month, after 150 yuan in social insurance deductions. In the end, Pei felt it just wasn’t worth it and he gave up both jobs.

The walkie-talkie had failed twice before. We’d complained about it many times. Last year as well, August or September time, I fell from the train after a walkie-talkie problem. That time however the train was moving forward, and I fell off the last wagon, so I just grazed a bit of skin. And after my accident, there was another major incident. That one also involved signalling. It was just too dangerous. There were no safety measures. There was no point in going on like that.

[Han] And yet, you still went back?

I am a former soldier; there are only seven of us in our crew, including our boss. We get on very well normally ... they said they did not have enough people, they asked me to come back and I felt I could not refuse, you understand?

Seeking legal advice

After the accident, Pei was initially at a loss what to do or who to demand compensation from:

I was lying there in hospital. My parents are illiterate. I had no evidence that might help me to hand. I was not clear myself who I should be going after... After I came out of the hospital, I have been unable to find anybody locally to take this matter on. I do not have a local lawyer to represent my case, because no lawyer in the area dares accept it. Not even legal aid. The director of the legal aid centre told me, ‘We cannot take on your case.’ He was explicit, but I don’t know why they won’t.

In the end, Pei found a lawyer specialising in human rights after being introduced online by a friend involved with migrant worker issues. But, at the time of the interview with Han, the lawyer had yet to take any significant action.

Han Dongfang suggested two possible approaches. Given that the job was indispensable to the power station, Han argued that its use of agency workers was probably illegal under the Labour Contract Law, which specifies that only temporary, substitute and auxiliary positions can be filled by agency labour. Pei agreed that the shunting job was “essential to the plant; as long as it is coal-fired, they will have to bring coal in from outside.” Management was using temporary workers in unpopular important positions, he said, to “give the full-timers a rest.”

Han also raised the matter of “substantive employment relations” (事实劳动关系) under the Labour Law, meaning that the absence of a contract did not necessarily mean there was no employment relationship. Indeed, Pei pointed out that:

None of the three parties involved deny the fact that it is an work-related injury, and they do not deny that the accident happened while I was working at the unit.

He added that he had obtained his official work-related injury certification, evaluation of disability and assessment of nursing care needs on this basis. The wording of the work-related injury certification was as follows:

Worker Pei Yonghong, an employee from an employment agency of the power company, accidentally fell from a train while on duty at the Xiangtan plant of Datang Power. Later, his right arm had to be amputated and he also suffered a lumbar spine fracture. So work injury certification is justified and lawful, by this lawful procedure, and verification is granted.

But, crucially, no party was named as being liable for compensation.

Passing the buck

They are dragging their feet and do not want to pay compensation. They are not prepared to pay for the artificial arm. Of all three, only the Party secretary of Feihong came and visited me. And now they are not answering calls and I cannot even get in through the main entrance.

Moreover, Pei says his employment agency tried to avoid liability by reactivating his work-related injury insurance five hours after the accident occurred on 10 March, and a month after Pei had officially left the agency. This retroactive processing was designed to ensure that all medical and other expenses that should have been paid by the employer (because of the lack of insurance) were in fact met by the work-related injury insurance fund. Pei only discovered this anomaly when he checked his social insurance record for himself:

I cannot say whether it was fraud, but at any rate it states on my record of payments that the accident was at half past ten in the morning, and at a quarter past three in the afternoon, insurance was bought.

Later the media came to do interviews. They talked to the manager handling work-related injury insurance at the employment agency, and he loftily told them that ‘we always purchase insurance after somebody has an accident,’ and that is the prevailing ‘attitude.’

They do nothing; they just plunder state funds, when they should take responsibility themselves… The work-related injury insurance fund is built on the savings of migrant workers - extracted from their blood and sweat. Yet when a regular employee has an accident, do you think they are treated as miserably as us? No, when they have accidents, they have two nurses, and every month they get wages as usual and living expenses. But when something like this happens to us, we can hardly know where the next meal is coming from.

When he talked to Han Dongfang, Pei was still trying to figure out with his lawyer exactly who should take responsibility:

He said you don’t need to worry about this. One of the three units will take responsibility, because the facts are all in the open. They cannot get away. They are implicated. He told me just to be patient. And if none of them steps forward, we will have to sue them all.

Eventually, with the help of a CLB appointed lawyer, a private agreement was reached between the various parties in the spring of 2012. Pei received a lump sum payment from the work-related injury insurance fund for a Grade 4 disability, a serious injury that prevents the employee from working in the future. Datang Power paid an additional 200,000 yuan in compensation via its employment agency. However, the employment agency deducted 100,000 yuan for the cost of Pei’s new prosthetic arm, which it had already paid for.

In the end, Pei only received an additional 100,000 yuan in compensation. He is currently petitioning for the full amount.

Han Dongfang's interview with Pei Yonghong was first broadcast in five episodes in November 2011. To read the full Chinese transcript or listen to the audio file of the broadcast please go to the workers’ voices section of our Chinese language website and follow the links.

Story Highlight

It is the duty of the union to represent workers in negotiations with employers, it should not just sit on its hands. Neither should the Trade Union Law just exist on paper. The union should shoulder its legal responsibilities towards workers by defending their rights.

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